(dissenting):
In my opinion in United States v. Iverson, 5 M.J. 440, 445, 447 (C.M.A.1978), I indicated my conviction that the intention of Congress and of case precedents in this Court established that “when a case leaves the command level, the attorney-client relationship between the accused and military counsel at that level ends by operation of law.” I still have that view. However, assuming that my Brothers, not I, correctly construe the congressional intention, I am constrained to disagree with their conclusion that a new post-conviction attorney-client relationship, for the purpose of compliance with the rule promulgated in United States v. Goode, 1 M.J. 3 (C.M.A.1975), was not properly established.
This case is before us for a third time. On the initial review,1 by unpublished order,2 we remanded for a new post-conviction review by a staff judge advocate and action by a convening authority because of the failure to furnish the accused with an authenticated copy of the record of trial. See United States v. Cruz-Rios, 1 M.J. 429 (C.M.A.1976). On the second application to this Court, Iverson was then pending. Although the petition set forth no assignments of error,. the Court nonetheless granted review on the specified issue of whether accused was “prejudiced by serving substitute defense counsel with a copy of the second staff judge advocate review.” 3 M.J. 115 (C.M.A.1977). The Government moved to obtain disclosure of the relationship between the accused and a Captain Young, who had described himself as “Defense Counsel” in a document captioned “Reply to Post-Trial Review” that was submitted on the second staff judge advocate’s review that had been directed by the Court. Thereupon, the Court vacated the grant of review and remanded the record to the Court of Military Review for “resolution” of the matter. 3 M.J. 385 (C.M.A.1977).
On the remand, the Court of Military Review obtained information from Captain Young. From the evidence, the court found that, for purpose of compliance with the Goode rule, an attorney-client relationship existed between Captain Young and the accused. In its opinion, the court noted that Captain Young had “offered his services; they were accepted by appellant; and counsel acted on- . . . [the appellant’s] behalf.” 4 M.J. 821, 822 (A.C.M.R.1978). In my opinion, the evidence before the Court of Military Review more than amply supports the court’s findings of fact. Evidentially supported findings of fact are binding upon this Court. United States v. Martin, 1 M.J. 75 (C.M.A.1975).
A further reason exists to hold against the accused. When the case was before the Court of Military Review for review of the post-conviction proceedings that involved Captain Young, appellate defense counsel assigned no errors. However, relying upon new evidence appended to Captain Young’s reply to the staff judge advocate’s review, which evidence appellate defense counsel described as “impressive,” counsel urged the *97court to disapprove the bad-conduct discharge. In his brief, appellate defense counsel referred to Captain Young as “counsel for appellant.” Irrefutably, therefore, instead of disavowing the substitute defense counsel’s action “at the first opportunity available to” him, as in United States v. Iverson, supra at 450, the accused and his appellate defense counsel affirmatively used substitute counsel’s work product. Such utilization of the work of substitute counsel on behalf of the accused “cannot now, in my opinion, [be] repudiate[d].” United States v. Brown, 5 M.J. 454, 455, 457 (C.M.A.1978) (Cook, J., dissenting).
For the reasons indicated, I would affirm the decision of the Court of Military Review.
. Petition for review granted, 23 U.S.C.M.A. 739 (1975).
. The substance of the decretal portion of the order appears at 5 M.J. 1090 (C.M.A.1976).